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November 21, 2004

Will federal judges engage in the policy debate after Booker and Fanfan?

As noted in posts here and here about the US Sentencing Commission's hearings last week, if (when?) the Supreme Court applies Blakely to the federal guidelines, a policy battle could erupt between the Justice Department advocating "topless guidelines" (aka the Bowman fix) and others advocating some form of Blakely-ized simplified guidelines. If (when?) such a legal tussle develops, I wonder whether and how federal judges may get involved in the policy fray.

Notably, as detailed in this testimony of Judge Emmet G. Sullivan on behalf of the Committee on Criminal Law of the Judicial Conference of the United States, at the USSC hearing the judges did not endorse any specific reform recommendations. But Judge Sullivan did indicate that the Judicial Conference plans to be actively involved in the reform process:

We are not prepared today to convey a Judicial Conference position or offer an opinion on the various questions of law and policy presented by the various proposals. The Committee is actively considering the future of the sentencing process so that the Judicial Conference can be prepared to quickly analyze any proposed legislation and to consider all of the various legislative proposals as they develop.

The Committee intends to explore the range of alternatives to the existing sentencing process in the event the Supreme Court, in deciding Booker and Fanfan, declares the sentencing guidelines unconstitutional in whole or in part. We will evaluate and, where appropriate, make recommendations to the Conference on any identified alternatives in terms of their legal soundness and their impact on judicial responsibilities, workload, and court administration.

Reflecting upon why the current federal guidelines are viewed negatively by a considerable segment of the federal judiciary, many commentators have noted that federal judges did not actively engage with the USSC when it was drafting the original guidelines, and also that the USSC did not positively engage with federal judges after promulgation of the original guidelines. If the federal sentencing system must be re-constructed after Booker and Fanfan, it will be interesting to see how federal judges get involved.

Based on reading some of the post-Blakely opinions, I suspect that most federal district judges would favor either advisory guidelines or some form of Blakely-ized simplified guidelines. However, topless guidelines would technically give sentencing judges more discretion, although only discretion to be tougher, not to be more lenient (which seems to be the chief concern when judge call for more discretion). And, of course, judicial opinions may be quite varied, since differences in caseloads and the mix of offenders may give judges in urban areas or in border districts a different view on Blakely-ized guidelines than judges in other regions.